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EVENTS

Free Speech for Evil, Hateful, Repulsive Nutjobs? You Betcha!

The Supreme Court just overturned the verdict against Fred Phelps and the Westboro Baptist Church, and upheld their right (in limited circumstances and with reasonable restrictions) to picket funerals.

It therefore seems like a good time to reprint this piece, written in 2007 when the original verdict against Phelps came down… explaining why, with great personal revulsion and reluctance, I agree with the Supreme Court.

*

Never, in the worst of my worst nightmares, did I think I would ever have to write anything at all defending Fred Phelps.

But it looks like I do.

Dammit, dammit, dammit.

Quick precis, for those who don’t know the story: You know Fred Phelps? The evil, hateful, repulsive nutjob who pickets the funerals of prominent gay people, with signs saying things like “God Hates Fags”? Who lately has been picketing the funerals of U.S. soldiers killed in the Iraq war, on the grounds that their deaths are punishment for the nation’s tolerance of homosexuality? (I told you — evil, hateful, repulsive nutjob.)

He — or more accurately, his church — was recently ordered to pay nearly $11 million in damages, in a civil suit filed by the father of a soldier whose funeral Phelps picketed. The suit was won on the grounds that the picket constituted “invasion of privacy and intent to inflict emotional distress.”

And I’m finding myself very disturbed by this.

Don’t get me wrong. I am feeling a certain amount of visceral Schadenfreude about the decision. I won’t deny that. As Molly Ivins once said, “Mama may have raised a mean child, but she didn’t raise no hypocrites.” But as much as I personally enjoy seeing the bastard suffer, I am far more disturbed by the extremely chilling effect that this decision could have for freedom of political speech and expression.

For all of us.

And that’s a whole lot more important to me than my personal Schadenfreude.

According to the reports I’ve read, this was not an Operation Rescue type of deal. There was no disruption of the service, no getting three inches from the mourners’ faces to scream at them. The plaintiff himself said at the trial that he didn’t even see the protesters or their signs at the funeral: in fact, he didn’t know they’d been there until he saw news reports about them later. They kept their hateful, repugnant protest a reasonable distance away. So the invasion of privacy thing seems to be pretty much bullshit. It’s the “intent to inflict emotional distress” that’s the real core here.

And when it comes to political and religious speech, I think the infliction of emotional distress is — and should be — a guaranteed, First Amendment-protected right.

Take a look at my Atheists and Anger piece. And take a look at the deluge of comments. 749 comments as of this writing, and still climbing. [Update: 1653 comments as of 3/2/11.] Almost half from people who were very emotionally distressed indeed by the piece. I knew when I wrote it that the piece would inflict emotional distress on a lot of people (although I didn’t quite expect the deluge)… and I wrote it anyway.

I want to be able to write like that again without being sued.

Not a perfect example, I’ll admit. People come to my blog voluntarily (although some of them seem to have forgotten that fact), so it could be argued that I didn’t inflict anything.

So let’s use a different example. I want the right to picket church services with a sign saying, “How’s Your Invisible Friend Today?” To picket the opening of a new steak restaurant with signs that vividly describe slaughterhouse conditions. To picket George W. Bush’s eventual funeral singing, “Ding, Dong, The Witch Is Dead.” I probably wouldn’t do any of those things, since I’d consider them in bad taste; but I think I should have the right to do them.

And if this ruling stands, I might not.

Free speech is a human right, one of the central foundations that this country was built on. And that’s not just true when the speech in question goes the way we want it. The First Amendment does not exist to protect popular speech. It exists to protect unpopular speech. That’s the whole point. We don’t need Constitutional protection for our right to publish apple pie recipes or pictures of cute puppies. We need Constitutional protection for our right to say things that make people flee in horror… from “God Hates Fags” to “Gay Is Beautiful,” from “Stop the War” to “Bomb Them Into The Stone Age,” from “God Wants Our Soldiers To Die” to “God Does Not Exist.”

And the more I think about this case, the more I think it’s bad strategically as well as ethically. And for much the same reason. I think this case can and will be used by the Right to argue that queers are demanding “special rights.” “Sure, they want First Amendment protections for themselves,” they’ll say. “But they sure are quick to get off their First Amendment high horse when it’s someone they don’t like!”

And they’ll be right to do so.

I mean, I think that. I’m saying that right now. And I’m queer.

If you want to make an argument that this ruling doesn’t violate the First Amendment, then I’d be very open to hearing it. I’m the first to admit that I’m not a legal or Constitutional scholar, and it’s possible that a reasonable case could be made that the Phelps protests are not protected speech under the First Amendment.

But I’ve seen too many arguments on this topic that say, “Free speech isn’t an absolute right, there are limits, look at libel laws, fraud laws, etc.”… without making any argument for why this particular case should be one of those limitations. Other than just, “The speech is hateful.” So far, nothing I have read on this particular case suggests any interpretation other than, “the plaintiffs are getting $11 million because they were upset by the content of Phelps’s speech.”

Deeply upset, and rightfully so. I get that. But again, that is exactly the sort of situation that the First Amendment is meant to protect.

And I’ve seen too many arguments on this case that essentially say, “First Amendment, Shmirst Amendment — I wanna see this bastard go down.” I would respectfully like to suggest that that is one lousy argument. The First Amendment is not to be casually tossed aside when it happens to protect a repulsive creep who we want to see fry.

A lot of progressives, people who are normally all over the First Amendment/free speech thing, are unusually willing, even eager, to drop their love of the Amendment in this particular case. And I understand the impulse. This particular case — this particular person, this particular group — makes people profoundly angry and upset. It makes me profoundly angry and upset. There’s a part of me that would love for some Constitutional scholar to come up with some legal loophole in the First Amendment, just so I can feel good about watching this bastard go down in flames.

But once again — that’s the whole point. The First Amendment to protect speech that makes people profoundly angry and upset.

See, this case is not just about a delicate legal nitpick. It’s not just about practical political strategy. It’s not even just about the pragmatic, enlightened self-interest desire to protect other people’s First Amendment rights so our own will be protected. This case is about the basic ethical principle of free speech. And it’s about whether we care enough about that principle to defend it, even when it hurts. It’s about whether people have the legal right to say what they want, no matter how vile or upsetting we find it… simply because they do.

So do we really have to defend this guy? Do we really have to stand up and say, “Yes, Fred Phelps has the right to go to funerals and carry signs saying ‘God hates fags’ and “Thank God for dead soldiers’?”

Yes. We do.

We have to stand up and defend anyone who’s trying to communicate an unpopular message that profoundly upsets people. That includes a lot of horrible, evil people with repulsive ideas. But that’s the whole point of the First Amendment. It doesn’t exist to protect popular speech. It doesn’t exist to protect Cute Overload. It exists to protect speech that makes us want to vomit.

Phelp’s free speech, however disgusting, is not the problem. The problem is Phelp’s ability to operate a ‘church’ with a congregation composed of his own abused children; the unwillingness of ‘real’ Xians to act against this sinkhole of depravity; the absence of a roud-the-clock picket wherever this monster goes.
The florescent ‘protests’ are the tip of the Westboro iceberg. Phelps could, and should, be stopped on the basis of his actual crimes, not his public offensiveness.

I have a very emotionally powerful desire to argue that (perhaps not in this specific case, but in general …) picketing or otherwise protesting at a funeral, of all things, is a violation of privacy and could be considered an issue of legal harassment, which is obviously not protected speech.
But honestly? I’m not convinced by that. I agree with this article.
As an aside, I’ve also thought, as a philosophical and strategic matter, that forbidding such pickets altogether would clearly silence this speech (that would kinda be the point). Actually …
I don’t want Westboro Baptist Church’s speech to be silenced. Their picketing of soldier’s and queer person’s funerals is a clear statement about the content and results of their world-view. I absolutely want that statement to stay in the marketplace of ideas, where it has to defend itself.

If churches had to put in an actual tax return and account for their money and SHOW they were a real charity and had to pay real estate taxes like any other business, then small little outfits like WBC may not be able to survive.
But as far as free speech goes I agree that these types should be allowed to speak openly, as I like knowing who is a hateful schite.

It’s not clear to me why prohibiting protests at funerals of private citizens, for fuck’s sake, doesn’t fall under “reasonable time, place, and manner restrictions” without even going into the content of the protest.

Isn’t there a difference between free speech, and being able to do what you want, where you want?
I agree that free speech means defending the right of those who disagree with you to say so. But I don’t think free speech includes picketing funerals. Everyone has a right to say what they like, but I think everyone also has a right to be able to choose not to listen to it.
A right to speech, not a right to shove it down people’s throats. It’s the same difference in my mind as the right to hold a particular belief versus trying to force the consequences of that belief on others through laws. (That point may not be very clear, I know what I mean, but I’m struggling to put it into words right now). Basically, “Believe what you like, but don’t expect your beliefs to have any impact on my life.”
I agree with the article as I have understood it. But a funeral is at a particular time, in a particular place, and picketing of any kind is completely inappropriate – it’s forcing one person’s view into another person’s consciousness without their consent.
An example of free speech done well, in my view:
Here in the UK we had the leader of the BNP (very right wing party) on a national politics TV programme and some were against giving him air time. I was all for it, because it was a situation where he was forced to defend himself against coherent criticism in front of a wide audience, and be seen for the nutjob that he is.
I hope I’m making sense. Either way, I love the blog and hope I can get some good conversation going.

I truly believe in free speech, but I understand that while I can say anything I want there are consequences I will have to face for the things I say. Disrespectful, hateful, or cruel comments made towards others carry a heavy burden that people like Phelps and the Westboro church have to accept. I think that some of these consequences could easily be reparations for those mistreated or misrepresented by the comments made. It’s my opinion that Phelps and his followers can say all the things they want to say as long as they are willing to pay the prices for their words. For Example, politicians are free to say anything they desire but they always choose their words carefully because the wrong phrase can lead to a series or consequences that range from a drop in popularity to being forced to resign. These consequences are financial for them so why shouldn’t the Westboro Baptists be financially liable for the words they choose?!

I would have to say that, while I agree in general principle that even the wackos should be allowed to say things, at some point, when everyone is running around with cans of gasoline, and many of the rest have matches, it becomes damn hard to tell which one is yelling “fire” in the crowded theater, which ones are just being assholes, and even harder to tell who is actually pointing at a real fire.
There are only two things, in a society with free speech, that can curtail this kind of bullshit:
1. Education, which many idiots have, like in Wisconsin, taken the financial crisis as their cue to undermine further and/or dismantle, as they have had dreams of for ages, and have been slowly defunding/eroding/vilifying for as long.
2. News sources, which sadly includes the internet, where you never need to see something you disagree with, or actually read the article your favorite blog failed to link to, but goes on for 4 pages describing in ranting, fake, irrational, lies about, and… lets see – Fox – One of the groups crying fire every place. CNN – Does little more than repeat what everyone else says, without even a pretense of trying to figure out who is telling the truth, or what the real facts are. ABC – More of the same as CNN. MSNBC – Personal bias here, but I think they are some of the more honest in the bunch, yet.. sometimes they gloss over the *real* issues, or just don’t see them, to take a stance that is either just as contrary to reality as FOX, or only marginally better, because they can’t seem to step back and realize that the whole premise underlying something is wrong, not just the right wings slightly more insane interpretation of it.
And then you have the political parties. Republicans – Lot of pseudo Randians, a smattering of old school, with no power, the ultra-small government types, that claim they are tea party, etc. Democrats – Republicans that like government programs more than the Rs do. Libertarians – Pure Randians, who actually argue that the problem is *any* regulation at all, not just too much of it. Independents (as the party itself) – Sigh.. I could go on. But there isn’t one bloody group that doesn’t either take conservatism, or liberalism, to some idiot extreme, and usually in some crazy combination that takes the absolute *worst* of both.
I am waiting for the party that thinks that, “Yes, the government can do some things right. Citizens are more important than corporations, and that includes the health of those citizens, and government waste is not in social programs, or research, its in all the other hand outs, unwanted military projects, stupid ass pet projects, funding to ‘faith based’ anything, and all the other useless crap that either a) takes money out of the programs that could help, or b) directly contravenes, interferes with, or contradicts, those other programs.”
At this point, I figure I am about as likely to see one as I am to be visited by Elves and a Unicorn tonight when I finish my 7 hour, ending at midnight shift, $12 thousand a year, barely over minimum wage work day, which is *not* a $10 thousand a year, 40 day a week, *only* minimum wage, job, purely due to a union, which is not being attacked by idiots *only* because its not a) in Wisconsin, and b) “government”.

For the record, I think the Supreme Court majority got it absolutely right. The whole POINT of the First Amendment is protecting unpopular speech. There’s just no need for a constitutional provision that says that the government can’t punish you for saying that kittens are cute and motherhood is a good idea.
I just have to throw this in, since the inevitable “fire in a crowded theater” line has come up. The history of that line is very instructive. It’s from a 1919 Supreme Court case called U.S. v. Schenck, which concerned a prosecution under some anti-spy act. The Supremes upheld Schenck’s conviction, and in the majority opinion, Justice Holmes wrote the “fire in a crowded theater line” by way of explaining that yes, First Amendment, right, ok, but this was different because the speech was so extra-specially awful.
And you know what Schenck did? You know what the actual conduct was which Holmes considered analogous to creating a deadly panic? Well, Schenck was a socialist — head of the party, if I recall right — and what he got busted for was handing out pamphlets to guys reporting for military induction saying that the draft was a form of involuntary servitude, and containing such rabble-rousing text as “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.”
So that’s the conduct that “fire in a crowded theater” actually refers to. The moral of the story is that if the rule is “free speech is fine unless it’s speech we really, really, really don’t like,” the end result is going to be the suppression of speech that maybe we ought to like a little better.

I think it should be particularly stressed that Fred Phelps is not, in fact, expressing any beliefs, he is running a con that goes like this:
1) Piss people off without actually overstepping the bounds of the law
2) Get assaulted
3) Sue
4) Profit!http://kanewj.com/wbc/
It is pretty immaterial in a discussion of freedom of speech, but it needs to be stressed.

Azkyroth and James Dancing Geek: You should read the SCOTUS decision. It pretty much answers your questions. The pickets were public comment on matters of public concern happening on public property. (And far from being intrusive, the plaintiff didn’t even know they had happened until later.)
Quote from the decision: “Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. It did not disrupt Mathew Snyder’s funeral, and its choice to picket at that time and place did not alter the nature of its speech. Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”
And, maybe more eloquently, “[S]peech on public issues occupies the highest rung of
the hierarchy of First Amendment values and is entitled to special protection.” In other words: If you’re going to ban public speech on matters of public concern, you better have a damn good reason — and “this really, really upsets people” does not qualify.
TSzymanek: There is a significant difference between suffering consequences for one’s speech in the form of losing customers, losing voters, alienating friends and family, being kicked out of private clubs, etc. — and suffering consequences for one’s speech in the form of a court decision against you. The former is simply cause and effect in the human world: we have the right to say what we want, and other people have the right to react to what we say. The latter, however, establishes a legal principle, and creates legal precedent we all have to live with. If Fred Phelps loses the right to picket soldiers’ funerals, then you lose the right to picket at Dick Cheney’s.

I agree, for all the reasons stated and because, after all, it’s the Phelps family. That clan of vicious, asshat lawyers that sues anyone on any grounds they can contrive.
Why would it ever be a good idea to give them another weapon in their crusade to take everyone’s money? If they’d lost this one, sure, they would have been out $11 million — but how much would they have made back by claiming offense from, say, counter-protesters?

Good for you, Greta. Funny how so many people support free speech unless it is offensive to THEM.
Studies have shown people will reliably elect to restrict free speech if the question is framed in a way to suggest that it means a person could say anything, even something offensive. Yet earlier on the same questionaire they will choose the statement indicating they fully support the 1st amendment.
(sorry no cite on hand, but interested parties can google; I studied this in grad school along with the Milgram obedience experiments and other similar research).

If they’d lost this one, sure, they would have been out $11 million — but how much would they have made back by claiming offense from, say, counter-protesters?
I’ll tell you exactly what they would have gotten. They would have had some ass saying that it was OK for them to say or do whatever they wanted, but the counter protesters actions where “unacceptable”, “over the top”, and, “should be prevented, by police escort of Phelps’ next protest, if necessary”. We have idiots on our own “supposed” side in these things who already happily ignore shouts of death threats from the opposition, but insist we are being too strident, offensive, narrow minded, etc., by refusing to compromise on our position, whether its gay rights, or science, or abortion, or ***anything else***.
Seriously, can we not agree that if it is *at all* reasonable to ban someone seeing a tit on TV, that someone making a public threat to kill someone else should at least require the person have a psych evaluation, if nothing else, and that “religion” be excluded as a valid excuse for not being frakking mad as a hatter? Why can we ban things from the open public venue that “everyone” in the damn country, except a few that don’t watch it, will see, which is trivial to the point of put stupidity, but we can’t even challenge the validity of someone protesting the a gay man’s funeral, and ask, “Should this shit head have been allowed to harass people arriving?”
Bets that if it was a gay celebrity they same morons would have been able to get without 5 blocks of it?
Either its OK to ban some behavior/speech, or it isn’t. This, “Its ok for a religious kook to say stupid shit that hurts people, or calls for worse, but you will be arrested if you are female and your top slips in public!”, bullshit is… just madness to near infinite power. We bomb people for less that what the morons who keep talking about stopping abortion services under threat of bombs and shootings are doing, but I would be arrested faster peeing on a potted plant in the local park than they will be for calling for murder.
How is this a sane, safe, or “free” society?

Something that’s come up lately for me as I’ve considered this has been the importance of distinguishing between decency and legality. My sociological bent will probably come through in this comment.
Decency is an individual-level construction. It encompasses things like civility, manners, tastefulness, that sort of stuff. When someone acts indecently, they tend to cause offense. Legality is a more macro-level construction that involves the government. It deals with the rights of individuals.
Decency is a context-specific social construct. It has no meaning in a vacuum, but is constantly defined and redefined by the members of a society. Your idea and my idea of what is decent and acceptable almost certainly differ from Fred Phelps’ idea of what is decent. Decency is often defined for a society by the norms and mores of the majority. Blacks and whites sitting together at restaurants or in buses was seen as indecent. Today, to an extent, non-heterosexual sexualities are seen as indecent.
The field of decency is where a lot of ideological differences should play out. If we disagree with Phelps’ message, as members of a democracy, we are empowered to condemn it as distasteful and vile, and to exercise our own freedoms of speech.
The problem is that there is a tendency to want to codify decency as law, which is a Bad Idea. Decency, as mentioned, is a fluid concept. Barring Phelps from saying his nasty things on the grounds of “It’s offensive”– even if we’re talking about deep, visceral offense– is no more defensible than barring blacks from sitting with whites because “it’s offensive.” Once you begin granting privileges to certain groups or denying rights to other groups based on decency, you get a tyranny of the majority.
Decency is doubly insidious in this way because it seems so naturally desirable. It’s so easy to argue, “This can’t be tyranny, because it’s so clearly unacceptable!” But a tyranny of the majority can exist regardless of whether the majority recognizes it, and using laws to uphold decency is a quick way to develop one.

Great post. I knew this decision would draw out the “I support free speech, but…” people, but all of the objections they can come up with, the Supreme Court has already thought of and refuted. Public land. Public concern. Unobtrusive protest. Outrage isn’t grounds for censorship. It’s really open and shut. The Westboro people paid the price of admission to be hateful obnoxious fucks, and we have the equal freedom to decide how to respond to them– if we respond at all. Personally, I’m amazed that people are wasting their outrage on the bigots who have such power rather than the ones who manage to get themselves into office and control our lives.

I admittedly have been to lazy to read all the details, but if the summary is at all accurate, I have to agree.
Honestly, I’m a lot more worried about Rush Limbaugh saying essentially the same things, with somewhat better diction, on national TV. Fred may not be a Poe, but he achieves the same goal of making homophobia look bad.
Picketing funerals? How about an anti-war picket. That would be highly apropos.
(Oh, and Greta, I want to celebrate Dick Cheney’s funeral. (Preferably execution, but I’ll take what I can get.) He’s the wicked witch; W was his trained flying monkey. I’d like to hammer home that point: W was Chauncey Gardener, an affable idiot. Do not let him carry away the sins of that administration like the original scapegoats.)

Yes. By an order of magnitude. And it’s still getting traffic and comments, three and a half years later.
And Eclectic, you are so right about W. being Chauncey Gardener! That has never occurred to me before. I’ve always just thought of him as Alfred E. Neuman. But you’re right. He seemed to play the role with great relish, though.

While I agree that in this case specifically, as in this specific funeral, there was no privacy issue at all, and the father just wanted to sue him for upsetting him, I also think Fred Phelps, in many cases, is doing something that shouldn’t be protected by the first amendment. Hate speech, by legal definition, is “Speech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.”
Foster hatred against a group based on sexual preference is just what he intends. And Hate Speech should be, in my opinion, a form of a hate crime, a form of harassment.

Well, we just dealt with Phelps in absentia at my college where I am in graduate school. We discovered we were on the Westboror picket list schedule that can be seen on their website. They were coming to picket our school over the showing of “Anatomy of Hate; Dialogue of Hope”, a documentary of hate and conflict that touches on resolutions and dialogue. Westboro is one of the four scenario’s explored in the movie. Well, that rocked our little community to the ground. I contacted my teacher and told her I would be late to class, because I was going to stand on the counter protest line being organized by the Gay Alliance, come hell or high water, and told her about the documentary. She promptly cut the class short and took us all to the documentary instead. So I got to the school early and discovered not the small Gay Alliance group I was expecting, but rather a huge crowd of about 100 students – gay, straight, religious and non religious, male and female boiling on the campus with shirts saying “Love Is…” (rest of tag line filled in with magic markers; idea being that Phelps hate would be countered with love.) and signs and singing and storming the Fox News crew that came out to film us. Outside the campus, another crowd, also about 100 strong, from the community, also sign empowered, gathered to stand against Westboro and protest their picket. The documentary, which as these things go at colleges, usually draws 7 people, 2 who want to see it, and 5 who have to do a paper on it, instead was packed out, standing room only, people sitting on the floor. They had to move it to a bigger auditorium to accommodate the crowd – which came out to be about 200 – students, teachers, alumni and others. One teacher, an out lesbian, saw me and threw her arms around me and said how proud she was of all of us. The creator of the documentary was there and was STUNNED by the college’s response. There was, disturbingly enough, a small group of about 7 people who turned out from the community to SUPPORT Westgate’s picket line… first I’ve EVER heard of that happening, but given where we live, well. Its one of the most conservative areas of the country. I guess I shouldn’t be surprised.
It was one of the most amazing experiences of our lives, the documentary was stunning, and every single person will remember it as long as we live! So…want to hear the joke?
Westboro was a no show. Thats right. Turns out a bunch of their pickets tend to be no shows, because they cannot in reality manage to make all of them. They schedule them and then pick and choose which ones they will actually attend. Same thing happened to a friend of mine in Boston at her college. We were a little disappointed at first, which sounds weird, I mean who WANTS them to show up? But the Westboro Church inadvertently gave our community an incredible opportunity to come together and stand in our own freedom of speech. The final feelings we all had was, sorry you weren’t there, Westboro…you missed an awesome moment!
That being said, the funeral protests set my teeth on edge to put it mildly. Rage would be my emotional reaction, actually. However I posted the pertinent article to FB, and said what you said…I loathe what they say. I will defend to my LAST breath their right to say it.
Thanks for the post! The comment line is gonna get long on this one too!

Hate speech, by legal definition, is “Speech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.”

Whose legal definition? Hate speech is not illegal in the United States.

Two things to think about when advocating the suppression of speech: 1) Who will you trust to decide what should be suppressed? 2) How do you know how you feel about someone else’s ideas if you are not allowed to hear them?
As soon as you allow any suppression of ideas you are surrendering your own freedom to hear and judge the statements/ideas of others.

Janee, you misunderstand how “hate crime” (more accurately termed “bias-motivated crimes”) function in the United States. I recommend reading David Neiwert on the subject, especially his book “Death On The Fourth Of July”.

Janee, where exactly are you getting that definition?
In the US, there is a significant difference between hate crimes and hate speech. Hate crimes — i.e., violent crimes motivated by hatred towards a group — are legally considered more heinous than other crimes. But hate speech is not, in fact, against the law.
And it shouldn’t be. Do you really think it should be illegal to say, for instance, “The Catholic Church is a legalized pedophile ring”? “The Tea Party is the biggest collection of crazy this side of Bellevue”? “Rush Limbaugh is a big fat idiot”? “George Bush has blood on his hands”? And if not — then why should it be illegal for Fred Phelps to say “God hates fags”?
Individual harassment is a very different thing. Following someone down the street and screaming epithets at them, for instance, is an implicit threat. But that is not what the WBC did. They picketed in a public place from 1000 feet away. The plaintiff didn’t even know they were there until he heard about it in the news the next day. That is not harassment.
They expressed their opinion on a public concern, in a public place, in a manner that did not disrupt any private activities. That is EXACTLY what the First Amendment was written to protect. We ought not to be trying to find excuses and rationalizations for banning it.

Greta;
Of course I am not suggesting that Phelps has no right of free speech. The media and lumpen-progressives only seem to notice Phelps on Phelps’ terms: ‘God Hates____ (everyone but Fred).’
I mean that our justified outrage at Phelps is squandered on any attempt to limit or stop what he SAYS, and where he says it. Phelps’ public statements are barely a hint at the heart of darkness that is Westboro Baptist.
Phelps’ speech is protected by the 1st Amendment. Separation of church and state should not place him above the law for the crimes he commits when the cameras aren’t rolling.
Phelps’ speech may be disgusting (or angering) but his evil lies in what he IS.
Thanks

In my opinion free speech doesn’t extend to picketing a funeral, and wouldn’t be weakened or put at risk if such an exception had been codified by SCOTUS. I will grant you that this particular case probably didn’t have the necessary elements to give the Court that latitude.
This is a case of competing rights. Your right to swing your fist ends at the tip of my nose as my fiancée would say. No, freedom to bury your loved one in peace is not enshrined in the Constitution, but it is a de facto right in that we’ve behaved as such for 225 years.
Too many of the arguments that give grudging acceptance for my family’s cruel behavior paint this as an either/or proposition and I simply don’t see that. There are many and robust limitations on our freedom to speak that we don’t concern ourselves with. No one argues that limitations on time and place of free speech puts this right on a slippery slope when we think about the front steps of the White House, why would we suddenly fear loss of this right if a similar restriction existed for funerals?
This notion that we should relinquish common decency ground in service to almighty free speech worries me. What else will we give up to make sure we have our say? Where is the balance?
American’s take great pride in our Constitution and the protection it affords the citizens of this country. But there must be a line drawn somewhere. Where better then when a family is struggling with, likely, the most difficult moment in their lives.
Limiting free speech near and during a private funeral strengthens that right rather than weakens it.

Nate: I’m somewhat reluctant to get into this with you, as I know this must be very personal and very difficult for you. But since you’re responding publicly, I’m going to assume you’re okay with a public reply and with public debate on the matter.
Here’s the thing. Are there some reasonable limits on free speech? Yes, of course. Some obvious and classic examples: laws against libel, fraud, copyright violation, false advertising, revealing state secrets. And I could probably be talked into a law limiting protests at funerals/ weddings/ other personal life events: limiting them to 1000 feet away, for instance, so protesters can express their views without disrupting people’s private lives.
But that’s exactly what the WBC did in this case. They stayed so far away from this particular funeral that the plaintiff didn’t even know they were there until he saw it on the news the next day. The emotional upset wasn’t brought on by the funeral being disrupted. It was brought on simply by knowing that the protests had happened at all. If the protests had happened in the next town, or the next state, the effect would have been the same.
So how would you propose to write a law banning this? Should we write a law saying that nobody is ever allowed to express political protest on the occasion of someone’s death?
When Nelson Rockefeller died, the lefty radio station in New York played “Ding, Dong, The Witch Is Dead.” When Spiro Agnew died, I saw op ed pieces in newspapers basically saying, “Good riddance to bad rubbish.” When Richard Nixon died, Hunter S. Thompson wrote a piece excoriating him, calling him (among other things) “scum,” an “evil bastard,” and “a political monster straight out of Grendel,” and expressing the wish that his body be burned in a trash bin or launched into an open- sewage canal. Tasteless? Yes. I, personally, would not do that. But legitimate political speech on matters of public concern? Absolutely. Would you want it enshrined in law that people are not allowed to do that?
And as long as the pickets don’t actually disrupt the funeral while it’s in progress, I don’t see how the WBC protests are any different.
You say that my right to swing my fist ends where your nose begins. True. But when it comes to free speech, we have to ask, “what constitutes a broken nose”? In the case of laws against fraud, copyright violation, etc., the damage from the speech is clear, and it’s material. In the case of this funeral protest, though, the damage is “hearing opinions that are profoundly upsetting.” And that is exactly what we don’t have a right to be protected from. We don’t have the right to be protected from hearing ideas we find upsetting. The expression of opinions we find upsetting — opinions on public matters, expressed in a public place — are exactly what the First Amendment was written to protect.
Finally… well, I’m writing a whole new piece on this, so I’ll keep this part brief. But free speech is one of the most fundamental cornerstones of a free democracy. We should not be looking for reasons to limit it. Our default assumption should always be that speech should be permitted, unless there is a profoundly compelling reason to limit it. And “these opinions are ones that people really don’t want to hear” doesn’t qualify.

Listened to profile on NPR about the Westboro church practicing law and earning as much as couple hundred grand a year doing it. Someone on the interview said that although he didn’t agree with their tactics, if you wanted to win the case you went with them.
Here is something I think should be done by those so inclined. Picket their law firm. Picket their clients. Get someone to set up a website and post pictures of the license plates of people who visit their business. Just like they did (do) with porn shops. Make people start realizing that by patronizing these people they are supporting their despicable actions.

First, thanks to everyone who took time to write and respond. It’s been great reading the blog and comments.
Second, a clarification. What the post triggered for me was to try and talk about situations where similar actions might not be ok, not to argue against the ruling in this particular case.
Your reply to Nate includes some of what I was wanting to talk about, for example the idea of reasonable limits on protests at similar events such as a 1000 foot radius, just like they were adhering to.
I was not trying to argue about this particular case, we agree on this case.
I think the argument about the practicality of enshrining such limits in law does raise serious problems however, and I find myself shifting from wondering if there are times that free speech impinges on personal moments too much to how we might state where that boundary lies (if anywhere), and how to respond, individually, as a society or both, when the boundary is crossed, particularly if law is an inappropriate and/or impractical response.
(P.S. For the record, this comment took several re-writes over about a couple of hours. I reckon I need to get into the writing habit again.)

She’s not as high profile as Sarah Palin, but Maggie Gallagher of NOM also dislikes this decision. So yeah, a lot of anti-gay conservatives actually are set against the WBC, fancy that. (I think they dislike the WBC in part because it makes the anti-gay movement in general look bad.)
A couple of notes: there are no hate speech laws in the US, as far as I am aware, nor would they be even plausibly constitutional. Political speech, so long as it isn’t an immediate incitement to violence (such as telling an angry mob to go kill someone), is essentially sacrosanct. It doesn’t matter how hateful the speech is, and even Nazis and KKK members are protected. That’s not going to change without either an extremely radical change in SCOTUS, or a constitutional amendment.
And the place and time restriction idea, while totally plausible, and while it could legitimately lead to laws keeping protests away from the immediate vicinity of funerals, is totally inapplicable to this case. From the Court’s opinion:
“The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary fence. […] That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. […] The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. […]
“The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.”
There’s no way that the church could be accused of violating a place and time restriction. They arranged their protest properly with the authorities, and clearly broke no laws. They were also obviously not disrupting the funeral in any way. Maybe they’ve slipped up elsewhere, and someone would have a better case against them. But they are totally covered by the First Amendment in this case.

I’ve got several t-shirts that I wear on appropriate occasions, saying:
“What would Judas Do?”
“Suspected Terrorist”
and other, similar, things that are probably very troublesome to Xtians and authoritarians.
As offensive as the Phelps clan is, to use legal methods to stop them would, necessarily imply that those same legal methods could be used against me and everyone out there, and it is not worth it for us to lose what little freedom that still exists in the US to prevent the Phelps clan from being schmucks.
Seriously, just because the Phelps people are probably evil and insane does not imply they are stupid. They are probably very intelligent, in an evil and insane way. If we observe these people from a strategic/tactical frame of reference, and assuming that their primary goal is media attention, then even counter-protests are only giving them a “win”.
The Phelps clan needs to become irrelevant. If *everyone* would just ignore them, they will probably just go away.

Nate: Free speech very much does extend to picketing a funeral. Consider an anti-war activist who wants to draw attention to the death. Or someone picketing against capital punishment. Or protesting Christian Scientists for their rejection of medical treatment for their children. Or any of a thousand situations in which someone’s death is symptomatic of a wrong that needs to be righted.
Or what if the funeral procession includes strong political messages? Suppose that someone festooned a funeral with “My child died because congress isn’t hating the homos enough!”; is it unreasonable to counter-picket?
The whole point of the principle is that a person does not have the right to never be exposed to opinions that they dislike.
This is vitally important because I might have the despised opinions next week. (Have I explained my theory about how the NY World Trade Center was a legitimate military target, just like a munitions factory?)